Wednesday, January 7, 2015

"Face to Face with Dean Clifford "

Canada is a country of heinous crimes of grief and mourning, a land of human misery without any hope. An ocean of human tragedy, that their fierce waves drag millions of shattered lives. Nadir Siguencia

English Law and the Code Napoléon

Canada's present legal system derives from various European systems brought to this continent in the 17th and 18th centuries by explorers and colonists. Although the indigenous peoples whom the Europeans encountered here each had their own system of laws and social controls, over the years the laws of the encroaching immigrant cultures began to prevail. After the English defeat of the French at Quebec in 1759, the country fell almost exclusively under English law. Except for Quebec, where the civil law is based on the French Code Napoléon, Canada's criminal and civil law has its basis in English common and statutory law.

The common law, which developed in Great Britain after the Norman Conquest, was based on the decisions of judges in the royal courts. It is called judge-made law because it is a system of rules based on "precedent". Whenever a judge makes a decision that is to be legally enforced, this decision becomes a precedent: a rule that will guide judges in making subsequent decisions in similar cases. The common law is unique in the world because it cannot be found in any "code" or "legislation"; it exists only in past decisions. However, this also makes it flexible and adaptable to changing circumstances.

The tradition of civil law is quite different. It is based on Roman law, which was consolidated by the Roman Emperor Justinian. The law in ancient Rome was scattered about in many places: in books, in statutes, in proclamations. Justinian ordered his legal experts to put all the law into a single book to avoid confusion. Ever since, the civil law has been associated with a "civil code", containing almost all private law. Quebec's Civil Code was first enacted in 1866, just before Confederation, and after periodic amendments, was recently revised. Like all civil codes, such as the Code Napoléon in France, it contains a comprehensive statement of rules, many of which are framed as broad, general principles so as to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to the Code, and then refer to previous decisions for consistency.

When discussing the law as it pertains to aboriginal people in Canada it is also necessary to consider aboriginal rights and treaty rights which are protected under the Constitution. Aboriginal rights are those related to the historical occupancy and use of the land by aboriginal peoples; treaty rights are those set out in treaties entered into between the Crown and a particular group of aboriginal people.

SOURCES OF CANADIAN LAW